6 Essential Pre-Trial Discovery "Tools"

When was the last time you actually went to trial? For most new litigators with caseloads, a trial is a mythical event that is postponed long enough for the insurance adjuster to realize that a trial is too expensive and risky. So most of us are “Certified Pre-Trial Attorneys” who merely engage the “tools” of discovery to garner enough information and billable hours—to settle the case before trial. But what are these “tools” of discovery, really? Let’s take a closer look:1Interrogatories. Hey Mr./Ms. Opposing Counsel, I am going to ask you some questions that I already know the answers to and/or that have no applicability to the present action. About two days before they are due, you’ll ask for an extension of time to answer them because we both know you still haven’t looked at them and I’ve actually forgotten that it’s already been about 30 days. I’ll grant the extension the next day after first making you sweat and stating that “I need to consult with my client, who really wants this matter to stay on track.” Finally, when you send over the answers to my questions two months later, I will skim them close enough only to create a valid billing entry.

2Request for Production of Documents. You know those documents we already provided to each other before litigation? Yes, go ahead and make some more copies of them and send them over to my attention (again). My second request for documents will also ask you for some new documents, but I know you do not have them and/or they do not exist.

3Request for Admissions. I am going to ask you to admit things that I know you will deny, even if true. Oh, and I am also going to word them with quasi-grammatically-correct double negatives to try to outsmart you, while also outsmarting myself.

4Deposition. We are all curious to see what type of impression your client will make with a jury in the unlikely event this case goes to trial. Mostly, I want to get a good look at your client (does your client have big boobs? I hear juries like big boobs) and then ask them about personal things irrelevant to the present action (how many times have you been married?). And I also want to schedule some other depositions of people across the state that have duplicitous relevant information. Just to be safe.

5Subpoena Duces Tecum Without Deposition. You know, I do not have quite enough useless documentation relevant to this case, so I am going to request some more useless documents from a third party. However, I do not actually want to meet with the mouth-breather who has these documents, so I will just have them mail the documents to my office.

6Motion to Compel. I am going to file a Motion to Compel because you have failed to give me your client’s tax returns from 1997 and 1998. The judge will surely give you another twenty days to produce them, but having a hearing on the motion will give me a chance to refer to my “extensive courtroom experience” on my resume (even though I will spit out my rehearsed legal argument so fast at the hearing that the court reporter will ask me to repeat it).